HEARING EXAMINER'S RECOMMENDED FINDINGS OF FACT CONCLUSIONS OF LAW AND
ORDER

Case No. 3326

BACKGROUND

A public hearing in the above-captioned matter was commenced on
June 1, 1994 in Room 120 of the Madison Municipal Building, 215 Martin Luther
King, Jr. Boulevard in the City of Madison, Wisconsin before Hearing Examiner
Clifford E. Blackwell, III. The Complainant, Vince Steele, appeared in person
and by his attorneys, Jeffrey Spitzer-Resnick and Rachel Spector. The
Respondent, Highlander Motor Inn, appeared by its manager and partial owner, Yi
Chang Wang, and its attorney, Robert Kasieta of the law firm of Bell, Metzner,
Gierhart and Moore S.C. The hearing was adjourned on the motion of the
Respondent and further proceedings were held on June 27, 1994 in the same
location. Based upon the record of these proceedings, the Hearing Examiner makes
the following Recommended Findings of Fact, Conclusions of Law and Order:

RECOMMENDED FINDINGS OF FACT

The Complainant is a Black or African American person.

The Respondent is a Wisconsin corporation doing business as
the Highlander Motor Inn. Its business is that of a motor inn or motel. It
is open to the public. Its principle place of business is located at 4353
West Beltline Highway, within the City of Madison.

In the early hours of April 18, 1993, the Complainant and
his girlfriend, Kelly Nugent, were returning from a body building contest
when they decided they needed lodging. They saw the sign for the
Respondent's motel and noticed that the "Vacancy" sign was on.

The Complainant approached the office and noticed that the
light in the office was off but that the door was open. Upon entering the
office area, the Complainant found a bell and rang it two or three times to
gain the attention of whoever was in charge.

Yi Chang Wang, the motel manager, came out of the back area.
He spoke loudly or yelled at the Complainant about having been awakened.

After apologizing for wakening Wang, the Complainant asked
if there was a one bedroom room available for the night. Wang indicated that
there was not one available. The Complainant then asked if there was a two
bedroom room available. Wang said that there was not and that he had no room
for the Complainant.

The Complainant was angry and confused because of the
vacancy light being on. He returned to his car and explained what had
happened to his girlfriend. They waited to see if the vacancy light would be
turned off. It was not. While the Complainant and Nugent waited, they
observed a White couple approach the office of the motel and enter. The
White couple did not leave and the vacancy light remained lit.

After observing the White couple, the Complainant asked
Nugent to see if she would be given a room. She entered the dark office,
rang the bell and was waited on. She was given a room for the night. Nugent
is an Asian American.

At all times relevant to this complaint, the Complainant was
ready, willing and able to pay for the room at the Respondent's motel and to
pay in advance.

Wang has no recollection of the incident of April 18, 1993
or of ever having seen the Complainant or Nugent before the date of hearing.

The Highlander Motor Inn accepts referrals from Dane County
Department of Social Services and the Salvation Army. These referrals are
accepted without regard to race or membership in any other protected class.
These referrals include many Blacks or African Americans.

The Dane County Department of Social Services and the
Salvation Army would not refer clients to the Respondent for housing if the
Respondent were known to discriminate.

The Respondent will exclude persons from its motel if a
potential customer appears disruptive, refuses or is unable to pay or
attempts to defraud the Respondent by having more people in the room than
registered.

The Complainant's race was a substantial part of Wang's
refusal to give him a room.

The Respondent had a room available to rent to the
Complainant on April 18, 1993.

The Complainant suffered no economic or out of pocket loss
as a result of the Respondent's refusal to rent him a room.

The Complainant experienced some short-term anger and upset
as a result of the Respondent's action. The Complainant suffered no
long-term emotional distress or injury as a result of the Respondent's
actions.

The amount of $2,000 will compensate the Complainant for his
short-term emotional injury.

Wang did not intend to act maliciously or without regard to
the feelings and rights of the Complainant.

RECOMMENDED CONCLUSIONS OF LAW

The Complainant is a member of the protected class
"race".

The Respondent operates a public place of accommodation or
amusement within the meaning of MGO Sec. 3.23(2)(e).

The Respondent violated MGO Sec. 3.23(5)(a) by refusing to
rent the Complainant a room for the night of April 18, 1993 based, in part,
upon the Complainant's race.

The Complainant is entitled to be made whole for the
injuries that he has- suffered as a result of the Respondent's illegal
discrimination.

The Complainant did not demonstrate an entitlement to
punitive damages.

RECOMMENDED ORDER

The Respondent shall cease and desist from any and all
violations of the Ordinance.

The Respondent shall cease and desist from discriminating
against the Complainant and shall not retaliate against him or any other
person who may have aided or supported him in bringing this action.

The Respondent shall pay to the Complainant $2,000 in
compensatory damages for the Complainant's short-term emotional distress.
This amount shall be paid within thirty days of this order's becoming final.

The Respondent shall pay to the Complainant the reasonable
.costs including attorney's fees of bringing and maintaining this action.
Within thirty days of this order becoming final, the Complainant shall file
a petition along with supporting affidavits setting forth the Complainant's
costs and attorney's fees. The Respondent may submit any objections to the
Complainant's petition within fifteen days of the filing of the
Complainant's petition and supporting affidavits. The Complainant may submit
any materials in reply within ten days of the Respondent's filing of any
objections. If necessary, the Hearing Examiner will hold further proceedings
with respect to issues raised by the parties.

MEMORANDUM DECISION

This case represents a sad and difficult claim of
discrimination. The Complainant, a Black or African American male, sought a room
for the night at the Respondent's motel. Yi Chang Wang, a part owner of the
Respondent and the manager of the motel, refused him a room. The Complainant was
upset and offended that this could have happened to him. He observed a White
couple enter the premises and apparently be served. He arranged for a form of a
test to determine whether his race was the reason for his treatment. He asked
his girlfriend, Kelly Nugent, an Asian American, to see if she could get a room.
She entered where the Complainant had and was given a room.

Mr. Wang states that he has no recollection of the incidents
described by the Complainant and Nugent. He further states that he regularly
accepts customers of the Complainant's race referred to him by the Dane County
Department of Social Services and the Salvation Army. Wang asserts that it makes
no business sense for him to turn away any good customer. Wang also asserts that
because as an Asian he has suffered from illegal discrimination, he would not
engage in such discrimination himself.

Given Wang's failure or inability to account for the events of
April 18, 1993, the issue of liability must clearly be decided in favor of the
Complainant. The Commission utilizes the burden shifting paradigm set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668
(1973) and Texas Dent. of Community Affairs v. Burdine, 450 U.S. 248, 101
S. Ct. 1089, 67 L. Ed. 2d 207 (1981). Though this approach was developed in the
employment arena, it has been adopted in other areas such as housing
discrimination. Phillips v. Hunter Trails Ass'n., 685 F. 2d 184 (7th Cir.
1982).

In applying this approach, the Complainant must first set forth
a prima facie case of discrimination. If this occurs, the Respondent must then
present a legitimate nondiscriminatory reason for its actions. If the Respondent
sets forth such a reason, the burden shifts back to the Complainant to
demonstrate that the Respondent's proffered reason is either not worthy of
credence or is a pretext for other discriminatory motives. In any event, the
ultimate burden to demonstrate discrimination remains with the Complainant. St.
Mary's Honor Center v. Hicks, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993).

The Complainant met his initial burden in this case. There is no
question that the Complainant is a member of the protected class race or that
the Respondent is a public place of accommodation or amusement. The Hearing
Examiner accepts the Complainant's testimony that he was refused a room on April
18, 1993. The Complainant was credible in his testimony and it was corroborated
by the testimony of his girlfriend, Kelly Nugent. The fact that the Complainant
and Ms. Nugent have a prior relationship does not automatically render their
testimony inherently unbelievable. Both testified in a straightforward and
credible manner. Nugent's testimony was supported by the registration materials
showing that she had indeed been provided a room on April 18, 1993.

The Respondent argues that the Complainant's testimony was not
worthy of credence because of a degree of inconsistency with respect to the
precise time and the length of time that elapsed during the April 18, 1993
incident. While it is true that the Complainant's testimony with respect to time
was somewhat inconsistent, the inconsistencies were of a relatively small
magnitude and are within the degree to be expected from one who is upset. The
problems of fixing a precise time is complicated by the fact that this incident
occurred late at night. The exact time of the incident and how long it took are
not necessary to any element of the claim and are therefore relevant only
marginally to the credibility of the Complainant. The Complainant's credibility
is not significantly impaired by the inconsistencies that appear on the record.

The one issue remaining in the prima facie case analysis is
whether the adverse action suffered by the Complainant was the result of his
membership in a protected class. The Complainant points to three pieces of
evidence in support of his claim. First, he contends that Wang's words to the
effect that there was no room for "him" shows a discriminatory intent.
There appears no reason for Wang to have indicated that there was no room for
the Complainant instead of indicating that there was simply no room available to
anyone unless Wang meant to convey something special about the Complainant.
While it must be conceded that Wang's command of the English language appears to
be less than complete, the Hearing Examiner found little difficulty in
understanding Wang's testimony at hearing and Wang seemed not to have any great
difficulty in understanding questions put to him. The Respondent's explanation
of the incident concluding that there was simply a misunderstanding between Wang
and the Complainant is not supported by the record.

Wang produced no evidence indicating that there was a
misunderstanding. Instead, he relies on his claim that the incident did not
occur because he does not recall it. Had Wang remembered the incident and
;indicated that he had difficulty communicating with the Complainant or came to
an erroneous conclusion about the Complainant's reliability or condition, this
would support the claimed defense. The Respondent asks the Hearing Examiner to
speculate about the reasons for a misunderstanding that the Respondent does not
recall. The Hearing Examiner cannot engage in such speculation without some
basis in the record.

The Respondent indicated that there were legitimate reasons for
which Wang had turned down customers in the past. These were if the customer
appeared to be disruptive or if the customer seemed unlikely to pay or if the
customer was likely to bring more people to the room than the number indicated
at the time of registration. Wang did not indicate that any of these factors
applied to the Complainant. In fact, Wang testified that he did not recall the
Complainant in any way. Given this lack of recall, the Hearing Examiner cannot
conclude that Wang's singling out the Complainant for the lack of a room was for
one of these other legitimate purposes. There is no basis on this record to
conclude that the Complainant represented some sort of threat to Wang or the
other customers. Equally there is nothing in this record to indicate that the
Complainant was not willing or able to pay the Respondent's price in advance or
that the Complainant intended to sneak another person into the room.

Second, the Complainant observed a White couple enter the
Respondent's office shortly after he had returned to his car in the parking lot.
The couple did not reappear and the vacancy sign did not go out. This gives the
appearance that the Complainant was treated less favorably than a White couple.
On this record, the Hearing Examiner cannot conclude that this incident by
itself demonstrates that the Complainant's race was a significant factor in his
being refused a room. There is no clear indication that the White couple seen by
the Complainant were checking in. If they had already been registered at the
time that the Complainant attempted to register, the fact that they did not
reappear would be a neutral factor instead of one supporting the Complainant's
position. Since the record does not disclose the actual status of the White
couple at the time that they were observed by the Complainant and Nugent, the
Hearing Examiner cannot reach the conclusion that race was a motivating factor
in the Complainant's treatment based upon this incident alone.

The third circumstance pointed to by the Complainant is his
girlfriend's ability to obtain a room so shortly after the Complainant's
failure. Ms. Nugent is a Korean American who is, on this record, not of the
Complainant's race. For Wang to have provided her with a room so soon after the
Complainant was denied a room leads strongly to the conclusion that the
Complainant's race was a factor in the Complainant's treatment.

At the time of hearing, Wang indicated that he believed that
Nugent was an African American because of the darkness of her skin tone. Other
witnesses indicated that Nugent's skin was deeply tanned but that she did not
appear to be an African American. There was some testimony to the effect that
Nugent had the appearance of a person of mixed heritage. Nothing in the record
convinces the Hearing Examiner that Nugent, on April 18, 1993, would have
appeared to be anything but an Asian American woman. The Hearing Examiner
believes that Nugenfs skin tone would likely have been much less dark in April
of the year as opposed to the end of June given that the darkness appears to
have been sun related.

The Complainant having made out the above prima facie case of
discrimination, the burden shifts to the Respondent to demonstrate that the
Complainant's treatment was as a result of some legitimate nondiscriminatory
practice or policy. In general, the Respondent does not even attempt to provide
such an explanation. Essentially the Respondent's position is that the incident
did not occur and if it occurred, it must have been for one of the legitimate
reasons for which Wang had refused rooms to others in the past or as the result
of a misunderstanding between Wang and the Complainant. As previously indicated
the record fails to disclose that any of the potentially legitimate reasons
actually applied to the Complainant. There is no reason to believe that the
Complainant was disruptive or was likely to disturb other customers of the
Respondent. The Respondent denied having seen the Complainant on April 18, 1993
and did not point to any conduct of the Complainant that would support a belief
that he would have been disruptive. Equally, there is nothing in the record to
support a belief that the Complainant was unwilling to pay the full price for
the room in advance. Nothing in the record indicates that the Complainant would
have brought anyone to the room other than his girlfriend.

The remaining arguments of the Respondent are intended to cast
doubt on the likelihood that Wang's actions were motivated by discrimination.
First, the Respondent contends that Wang has been the victim of discrimination
in the past and is therefore not likely to discriminate against someone else.
There was no showing of such treatment of Wang in the past or present. While
there is emotional appeal to this argument, there is nothing to demonstrate that
it has any factual or historical basis. To the contrary, history is replete with
examples of how one minority group has in turn mistreated other minority groups.
More than mere assertion that Wang's past has made him a benevolent member of
society is necessary to prove the assertion. There is no such additional
evidence in this record.

The next argument of the Respondent is that because it accepts
African Americans and members of other protected classes as referrals from the
Dane County Department of Social Services and the Salvation Army that it would
not discriminate against other persons particularly since to do so might
jeopardize the Respondent's contracts with these agencies. While this argument
makes logical sense, it does nothing to explain the events of April 18, 1993.
One may hypothesize that it is one thing to accept a homeless family or a
referral who has already been processed through the requirements of some agency
and quite another matter to be faced with a single, unknown individual in the
middle of the night after having been awakened from sleep. While the possible
threat to a source of income might deter one from discrimination, it is equally
possible that since discrimination is based upon an unreasoning stereotype of a
group of people that logic may be overridden or ignored by the assumption that
one will not get caught.

There are similar objections to the Respondent's final argument
that the Respondent only makes money if it rents rooms. It is illogical to turn
away a paying customer if there are rooms available. Wang testified that there
were some circumstances in which he would turn away a potential customer even
though rooms were available. Accepting the fact that customers could be turned
away for arguably legitimate reasons, it is not much of a step to accept that
one could be turned away for illegal reasons. Again, nothing in this argument
demonstrates what actually happened on April 18, 1993 and is only intended to
enhance Wang's credibility as opposed to the credibility of the Complainant and
Nugent.

The Respondent fails to meet his burden to present a legitimate
nondiscriminatory reason for the treatment of the Complainant. The Hearing
Examiner need not move to the next step in the analysis because discrimination
has been demonstrated.

The Hearing Examiner must next determine what remedy is
appropriate and will make the Complainant whole. MGO Sec. 3.23(9)(c)2.b., Rules
of the Equal Opportunities Commission, Rule 17. The Complainant suffered no
economic or out-of-pocket loss. He did not have to travel any additional
distance or pay a higher rate to stay at a different motel. He and Nugent were
able to eventually obtain a room at the Respondent's motel as a result of
Nugent's effort.

The question of damages for emotional injuries or losses is more
difficult. The Commission has awarded such damages in a variety of cases. Wilker
v. Bermuda's Night Club, Case No. 3221 (Ex. Dec. (07/10/89), Ossia v.
Rush, Case No. 1377 (Ex. Dec. 06/07/88), Nelson v. Weight Loss Clinic of
America, Inc. et al., Case No. 20684 (Ex. Dec. 09/29/89). The Commission's
ability to make such awards has been upheld in the case of State of Wisconsin
ex. rel. Caryl Sprague v. City of Madison and City of Madison Equal
Opportunities Commission, Dane County Circuit Court Case No. 93 CV 113
(September 30, 1994). In order to prevail and to show such damage, a Complainant
need not provide expert testimony or show evidence of a disabling psychological
injury. Chomicki v. Wittekind, 128 Wis. 2d 188, 381 N.W.2d 561 (Ct. App.
1985); Seaton v. Sky Realty Co., 491 F. 2d 634 (7th Cir. 1974); Harris
v. Forklift Systems, Inc., 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993). One may
infer the injury from the totality of the circumstances. Chomicki, supra;
Seaton, supra. In this case, the evidence supporting an award is mixed
and is somewhat contradictory. On one hand, the Complainant testified that he
felt the sting of discrimination and that he was hurt and upset by the fact that
he had been denied a room by Wang. On the other hand, in response to the
Respondent's interrogatories the Complainant stated that he was not seeking
compensation for emotional damages or injuries. The testimony of Nugent also
casts some cloud on the extent of the Complainant's emotional injuries. She
indicated at hearing that the Complainant did not appear to be greatly upset
when he returned to the car.

As indicated above, the Hearing Examiner must recommend an order
that adequately redresses the injuries done to the Complainant. The testimony of
the Complainant is one factor to be considered in making this recommendation. To
this end, the Hearing Examiner believes that an award of $2,000 should redress
the harm done to the Complainant.

The testimony at hearing of both the Complainant and Nugent does
not support an award in the range suggested by the Complainant in his
post-hearing briefs. The Complainant's testimony that he suffered some
compensable injury was elicited only with lengthy and pointed questioning by his
attorney. In general, the Complainant did not describe the manner in which he
had suffered as a result of the Respondent's discrimination.

Despite this lack of direct testimony from the Complainant, the
Hearing Examiner finds that the recommended award is necessary to redress the
Complainant for the Respondent's discriminatory act. Some degree of emotional
injury can be inferred from the circumstances of this case. The Complainant was
denied a room to which he was entitled and for which he was willing to pay. This
occurred late at night and the Complainant had to report his failure to obtain a
room to his girlfriend. These facts support the award. In the case of Perez
v. Affiliated Carriage Systems. Inc., Case No. 20938 MEOC 06/03/92, (Ex.
Dec. 12/30/91), the Hearing Examiner awarded the Complainant $2,000. In that
case the Complainant testified to the economic and family problems that flowed
from his discriminatory termination. Similarly, in Leatherberry v. GTE
Directories Sales Com., Case No. 21124 (MEOC 04/14/93, Ex. Dec. 01/05/93),
the Hearing Examiner found the Complainant's testimony and that of her husband
compelling regarding the outrageous conduct by the Respondent which was directed
at the Complainant and resulted in significant emotional injury. The Hearing
Examiner awarded $25,000 for emotional damages. The Complainant in the present
case did not produce the same type of evidence to support his claim of emotional
injury. In Sprague v. Rowe and Hacklander-Ready, Case No. 1462 (MEOC
02/10/94), the Commission awarded the Complainant $3,000 for her emotional
injuries based upon her testimony of how she felt as a result of potential
roommates' denial of her application because of her sexual orientation. In Chung
v. Paisans, Case No. 21192 (Ex. Dec. on liability 02/10/93) the Complainant
was awarded $750 for her emotional damages because of a total lack of convincing
evidence about her injuries.

In the present case, the quality and weight of the testimony
about emotional injuries to the Complainant was more like that in Perez or
Sprague than that in either Leatherberry or Chung. There was some
testimony, unlike Chung, but it was not so compelling as that in Leatherberry.

The Complainant argues that because the discrimination in this
case closely resembles that which necessitated the adoption of Title II of the
Civil Rights Act of 1964 that a large compensatory award should be made. This
argument misses the mark. The fact that discrimination in public places of
accommodation or amusement still exists today, does nothing to compensate the
Complainant for his actual injuries. An award for this purpose would more
closely follow the rationale for punitive damages. In this case, the Complainant
did not demonstrate an entitlement to punitive damages. Though the Commission
has awarded such damages in a small number of cases, such awards represent an
extraordinary exercise of the Commission's powers and should not be imposed
without a sound evidentiary basis. That basis is lacking in this case.

The Complainant, Vince Steele, filed a complaint of discrimination with the
Madison Equal Opportunities Commission (Commission) on July 22, 1993. The
complaint alleged that the Respondent, Highlander of Madison, Inc. d/b/a
Highlander Motor Inn, refused to rent him a room for the night at least in part
because of his race. The allegations of the complaint were investigated and an
Initial Determination concluding that there was probable cause to believe that
the Respondent had discriminated against the Complainant on the basis of the
Complainant's race in provision of a public place of accommodation or amusement
was issued on November 8, 1993. The parties were offered the opportunity to
conciliate the complaint but such efforts proved unsuccessful.

Subsequent to the failure of conciliation, the complaint was transferred to
the Hearing Examiner for a public hearing on the allegations of the complaint.
The hearing was originally noticed for June 1, 1994. After approximately 45
minutes of testimony, the Hearing Examiner stayed the proceedings to allow the
Respondent to conduct additional discovery on the Complainant's claim for
damages. The hearing was recommenced and completed on June 27, 1994. After the
parties had an opportunity to present written arguments, the Hearing Examiner
issued his Recommended Findings of Fact, Conclusions of Law and Order on March
24, 1995.

The Hearing Examiner concluded that discrimination had occurred but found
that there were no out-of-pocket damages and awarded the Complainant $2,000 to
compensate him for emotional damages stemming from the embarrassment and
humiliation of having been denied a room. The Hearing Examiner also ordered the
Respondent to cease discriminating in violation of the ordinance and ordered the
Respondent to pay the Complainant's costs including a reasonable attorney's fee
incurred in bringing the action.

On April 4, 1995, the Respondent appealed the Hearing Examiner's Recommended
Findings of Fact, Conclusions of Law and Order to the Commission. The parties
submitted written arguments in support of their respective positions. The
Commission met on August 10, 1995 to consider the Respondent's appeal.
Participating in the Commission's discussions were Commissioners Bruskewitz,
Greenberg, Houlihan, Johnson, Mufoz, Verriden and Washington.

DECISION

The Respondent challenges both the finding of discrimination and the damages
awarded by the Hearing Examiner. With respect to the finding of discrimination
the Respondent essentially repeats the same arguments that he raised before the
Hearing Examiner and adds that the Hearing Examiner erred in his interpretation
of the facts.

After review of the record and the arguments of the parties, the Commission
concludes that the Hearing Examiner's determination that the Respondent had
denied the Complainant a room for the night, at least in part because of the
Complainant's race in violation of the ordinance, is supported by substantial
evidence in the record. In reaching this conclusion the Commission relies
particularly on the fact that there. was a room available for the night, that
the Complainant was denied the room and that the room, shortly after being
denied to the Complainant, was given to a person not of his race, the
Complainant's girlfriend, Kelly Nugent.

The Commission disagrees with the Respondent's contention that because he
rents to other persons of the Complainant's race, it must conclude that the
Respondent did not discriminate against the Complainant on the basis of his
race. The Commission finds that the circumstances involved in the different
transactions are distinguishable. With respect to the persons referred through
several social service programs, the Respondent is receiving persons who have to
some extent been screened, whose rent is guaranteed and who generally come in
family units. It is not at all a similar circumstance to be faced with a single,
unknown male, late at night. While the Commission does not believe that single
males of any race should be treated automatically with suspicion if they appear
late at night, it is factually different from the circumstances under which the
Respondent testified that he accepted other members of the Complainant's race as
tenants. Treatment of one group does not automatically transfer to the other.
The Respondent presented no evidence that was convincing to the Commission that
the Respondent's treatment of the Complainant was in accord with his treatment
of others of the Complainant's race.

Similarly, the Commission is not convinced by the Respondent's argument that
the Complainant misunderstood the Respondent's limited English and believed that
he was being discriminated against when, in fact, he wasn't. On this record,
there is no indication that the Respondent attempted to clarify any apparent
misunderstanding by following the Complainant out of the office. Also, there was
no problem with the Respondent's English a short time later when Ms. Nugent
sought and successfully obtained a room for the night.

The Respondent's contention that he would not discriminate against someone
because he has himself been the victim of discrimination finds no support in
this record. First, the Respondent does not demonstrate that he has been the
victim of discrimination or under what circumstances' such discrimination may
have occurred. Even if the Commission were to accept that the Respondent had
been discriminated against at some time in his past, it does not logically
follow that he would not inflict similar treatment upon someone else. History is
replete with examples of how groups who have suffered at the hands of one
culture or group have turned around and inflicted others with the same
treatment. Current news reports from the former Yugoslavia and Africa are
contemporary examples of this phenomenon.

The Commission accepts the Hearing Examiner's determinations of credibility.
The version of events related by the Complainant is credible and is corroborated
by the testimony of Nugent. Nugent's testimony is credible and is consistent
with the findings of the Hearing Examiner. The Respondent's testimony does not
explain the circumstances of April 18, 1993 except to state that he has no
memory of the events but believes that they could not have occurred as claimed
by the Complainant. This is insufficient to rebut the case presented by the
testimony of the Complainant and corroborated by Nugent.

The Commission's adoption of the Hearing Examiner's findings is limited to
those relating to the issue of liability. The Commission does not believe that
the record in this matter supports the Hearing Examiner's award of compensatory
damages. The Commission concedes that an award of compensatory damages is
necessary to "make whole" the Complainant for his injuries caused by
discrimination. It is not the fact of the award but the amount of the award with
which the Commission disagrees.

The Commission also reviewed the cases analyzed by the Hearing Examiner but
felt that the record did not support the Hearing Examiner's conclusion. In
reaching this conclusion, the Commission was most struck by three things.

First, there is a conflict in the record of statements made by the
Complainant in answers to interrogatories and then at the time of hearing. In
answering interrogatories propounded by the Respondent, the Complainant stated
that he was not seeking any damages for emotional injuries: At the first day of
hearing, the Complainant changed this position somewhat in response to
questioning by his counsel. It was this apparent change in position that led the
Hearing Examiner to recess the hearing and to permit the Respondent to conduct
additional discovery. The Commission believes that this demonstrates a lack of
clear emotional damage.

The second factor is Nugent's testimony that when the Complainant came back
from the office after his confrontation with the Respondent's agent, Wang, he
did not appear particularly upset. The Commission puts significant weight on
Nugent's testimony as it corroborates the Complainant's own testimony, and it
similarly views her testimony in this regard to be important. If she could not
discern any great emotional distress in her "boyfriend", who could? It
seems that any distress suffered by the Complainant must have been relatively
slight for Nugent to have failed to see it.

The final element in the Commission's decision is the Complainant's own
conduct on the night in question and subsequent to that night. The Complainant
was not so greatly offended by his treatment that he was unwilling or unable to
stay there that night. The Commission believes that if the Complainant had
really been suffering emotional damages to a degree that supported the Hearing
Examiner's award, the Complainant would not have willingly stayed at the motel
the same night. Similarly, the record reflects that the Complainant has returned
to the same motel subsequent to the night on which he was discriminated against.
The Commission takes this as evidence that the Complainant was not greatly
offended or damaged by his treatment. If the Complainant had suffered so greatly
at the hands of the Respondent, the Commission believes that the Complainant
would not be willing to return to a place that had caused him such injury.

The Commission's position on emotional damages was established in two pivotal
cases, Nelson v. Weight Loss Clinic of America. Inc. et al., MEOC Case
No. 20684 (Ex. Dec. 09/29/89) and Ossia v. Rush, MEOC Case No. 1377 (Ex.
Dec. 06/07/88). This position has been further refined in Perez, Sprague
and other cases. The Commission strongly supports the position that emotional
damage may be inferred from the circumstances of discrimination as set forth in Nelson
and Ossia. Inferring damage does not however establish the degree of
damage necessarily. It is setting the amount of a compensating award that is the
tricky part.

The Commission finds that under the circumstances of this case some level of
emotional damage is implicit in the facts. One cannot help but to feel some pain
or discomfort at being turned away from a motel with your girlfriend when there
is a room available and you're ready willing and able to pay for that room. The
likelihood of this injury is heightened by the fact that the incident occurred
late at night. Though the Commission finds that the Complainant suffered an
emotional injury and that in order to be made whole the Complainant is entitled
to an award of damages, it believes that $600 is sufficient to make the
Complainant whole. As noted above, the record indicates that the Commission
finds that the Complainant did not suffer greatly because of the act of
discrimination. A reduction in the amount awarded by the Hearing Examiner to
$600 should adequately compensate the Complainant for his slight emotional
injuries.

The Commission concurs in the remainder of the Hearing Examiner's Order.

ORDER

The Commission adopts as its own and incorporates by reference as if fully
set forth herein, the Hearing Examiner's Recommended Findings of Fact,
Conclusions of Law and Order dated March 24, 1995, except for paragraphs 18 and
27. Those paragraphs are amended to reflect an award of compensatory damages for
emotional injuries in the amount of $600.

Joining in this decision are Commissioners Bruskewitz, Greenberg, Houlihan,
Johnson and Verriden. Opposing this decision are Commissioners Munoz and
Washington. Commissioner Gardner abstained from this decision.

On March 24, 1995, the Hearing Examiner, Clifford E. Blackwell, III, issued
Recommended Findings of Fact, Conclusions of Law and Order in the above
captioned matter, In his recommended decision, the Hearing Examiner found that
the Respondent had discriminated against the Complainant on the basis of his
race in denying him a room for the night at a motel owned and operated by the
Respondent. Having found that the Respondent had discriminated against the
Complainant, the Hearing Examiner recommended that the Respondent pay to the
Complainant $2,000 to compensate him for emotional injuries stemming from the
Respondent's discrimination. The Hearing Examiner also required the Respondent
to pay the Complainant's reasonable costs including actual attorney's fees
incurred in the pursuit of this complaint. The Recommended Findings of Fact,
Conclusions of Law and Order provided a schedule for proving and challenging the
amount of costs and attorney's fees.

On April 4, 1995, the Respondent appealed the Hearing Examiner's Recommended
Findings of Fact, Conclusions of Law and Order to the Madison Equal
Opportunities Commission (Commission). After briefing and deliberation, the
Commission issued its Decision and Final Order on August 31, 1995. In its
Decision and Final Order, the Commission determined that the Hearing Examiner
had awarded too large an amount in emotional damages and accordingly reduced the
damage award to $600. The Commission affirmed and adopted the remainder of the
Hearing Examiner's Recommended Findings of Fact, Conclusions of Law and Order.

The Respondent did not appeal the Commission's Decision and Final Order.
Pursuant to the Hearing Examiner's Order as adopted by the Commission, the
Complainant, on November 13, 1995, filed a petition for the award of costs
including attorney's fees. The Respondent objected to the Complainant's petition
by way of a letter-brief dated December 13, 1995. The Complainant responded to
the Respondent's objections in a brief dated January 19, 1996. Based upon the
submissions of the parties, the Hearing Examiner makes the following
Supplementary Recommended Findings of Fact, Conclusions of Law and Order:

RECOMMENDED FINDINGS OF FACT

At all times relevant hereto, Jeffrey Spitzner-Resnick and Rachel Spector
represented the Complainant in the above captioned matter. Spector was
employed as an attorney at law by Spitzner-Resnick.

Spitzner-Resnick and Spector are attorneys at law licensed to practice law
in the State of Wisconsin.

Spitzner-Resnick's usual and customary hourly rate for representation of
clients is $135 per hour.

Spector's usual and customary hourly rate for the representation of
clients was $110 per hour until December 31, 1995 at which time it became
$125 per hour.

Spitzner-Resnick and Spector together spent 38.45 hours in their
representation of the Complainant in connection with this matter including
without limitation time prior to the hearing, the hearing, during the appeal
before the Commission and with respect to the petition for costs and
attorney's fees.

With respect to the 38.45 hours accounted for by Spitzner-Resnick and
Spector, 31.95 of these hours were attributable to Spitzner-Resnick and 12.5
were attributable to Spector.

In connection with their representation of the Complainant in the above
captioned matter, Spitzner-Resnick and Spector expended $327.80 in costs.
This amount represents $100 for a Fair Housing Council of Dane County
investigation fee, $101.70 for two deposition transcripts, $106.50 for a
copy of the hearing transcript, $2.80 for charges from the state law library
and $16.80 for copying costs for briefs.

The hours spent by Spitzner-Resnick and Spector in representation of the
Complainant were reasonably necessary and were not duplicative of other
hours expended.

The costs expended by Spitzner-Resnick and Spector in representation of
the Complainant were reasonably necessary and not duplicative of other
expenditures.

The Complainant prevailed on the issue of liability before the Hearing
Examiner and the Commission.

The Complainant received an award of $600 for emotional damages before the
Commission. This amount was reduced from the amount of $2,000 recommended by
the Hearing Examiner.

CONCLUSIONS OF LAW

A Complainant in proceedings before the Equal Opportunities Commission is
entitled to recover costs and reasonable attorney's fees on any significant
issue on which he or she prevails.

The fundamental purpose of a fee award is to compensate an attorney for
his or her efforts. Accordingly, the fee award should be determined by
allowing the attorney to recover a reasonable hourly rate for all time
reasonably expended in representing his or her client.

It is appropriate to use an attorney's or law firm's customary billing
rate in setting a reasonable hourly rate in awarding fees to that attorney
or law firm.

The fees awarded to a prevailing complainant in a civil rights case ought
not be limited by any monetary award because substantial non-monetary
benefits are also realized by successful complainants, and because an
adequate fee is necessary to attract competent counsel in such eases.

Each person appearing before the Commission is obligated by oath or
affirmation to testify truthfully. One's conformity with this obligation
does not represent a reason for favorable treatment before the Commission.

ORDER

The Respondent shall pay to the Complainant and his attorneys the sum of
$5,191.05 in costs including a reasonable attorney's fee. Of this amount
$4,863.25 is attributable to attorney's fees and $327.80 is attributable to
costs.

The above amount shall be paid jointly to the Complainant and the Law
Offices of Jeffrey Spitzner-Resnick no later than thirty days after the date
upon which this order becomes final. Should the Complainant, his attorneys
and the Respondent agree in writing, alternative arrangements may be made.

MEMORANDUM DECISION

As noted above, in his Recommended Findings of Fact, Conclusions of Law and
Order issued on March 24, 1995, the Hearing Examiner ordered the Respondent to
pay the Complainant his reasonable costs including attorney's fees incurred in
pursuit of this complaint. The Hearing Examiner set forth a schedule for
submission of motions or petitions, objections and replies with respect to this
issue. None of the papers submitted with respect to the proof of costs including
attorney's fees were submitted in conformity with the Hearing Examiner's order.
Neither party has objected to the other's late submissions. While the Hearing
Examiner is not happy about these late filings, he will accept them due to the
lack of objection.

The Complainant's initial submittal is in proper form and sets forth a claim
for costs of $327.80 and attorney's fees of $4163.25. The attorney's fees figure
was amended to a total of $4,863.25 in the Complainant's reply to the
Respondent's objections to the Complainant's motion and supporting affidavit.

On December 13, 1995, the Respondent filed its objections to the
Complainant's proposed itemization of costs including attorney's fees. The
Respondent does not object to the hourly rate of either Jeffrey Spitzner-Resnick
or Rachel Spector. Neither does the Respondent object to the total number of
hours for which the Complainant seeks compensation nor for the costs specified
in the Complainant's motion and affidavit. Instead, the Respondent puts forth
four policy related arguments for why the amount claimed by the Complainant
should be reduced. The Hearing Examiner is not convinced by any of these
arguments.

The first contention of the Respondent is that the Complainant's relatively
small monetary award should not support attorney's fees substantially in excess
of the amount awarded. In his Recommended Findings of Fact, Conclusions of Law
and Order dated March 24, 1995, the Hearing Examiner recommended an award of
$2,000 as redress for the Complainant's emotional injuries stemming from the
Respondent's act of discrimination. The Commission reduced this award to $600 in
its Decision and Final Order dated August 31, 1995.

The Commission, through its Hearing Examiners, has directly addressed this
issue in the past. Harris v. Paragon Restaurant Group. Inc. et al., MEOC
Case No. 20947 (Ex. Dec. 9/27/89); Chung v. Paisans, MEOC Case No. 21192
(Ex. Dec. 7/29/93: 9/23/93). The key test as stated in those decisions and
citations contained therein, is whether the objective of the complaint was
obtained, not necessarily whether there was a large damage award. Tolentino
v. Freidman, 46 F.3d 645 (7th Cir. 1995); Helms v. Hewitt, 780 F.2d
367 (3d Cir. 1986), cert. granted, 106 S. Ct. 2914 (1986). Civil rights
litigation often has as its goal redress of one's lost rights and public
identification of discrimination While a prevailing complainant may be entitled
to an award of damages to make him or her whole that may represent a byproduct
of the litigation. This seems to be the case with this complaint.

The area of enforcement of rights to access to public places of accommodation
and amusement represented the first areas of work in the civil rights movements
at the state and federal levels. Identification of complaints in this area
represent a reminder of how little progress we have made in securing rights of
our citizens to equal enjoyment of facilities supposedly open to all. A finding
of liability in this matter accomplishes the goal of highlighting this important
area of public concern. Regardless of the amount of damages awarded the
Complainant, the fact of the Respondent's conduct is exposed to public scrutiny
and possible additional action by other governmental agencies that have used the
Respondent for housing programs. This by itself represents a significant
outcome.

With respect to the issue of damages specifically, this case is similar to
another recent Commission complaint. Meyer v. Purlie's Cafe South, MEOC
Case No. 3282 (Comm'n Dec. 10/5/94, Ex. Dec. 4/06/94, Ex. Dec. on fees 3/20/95).
In the Meyer case, the Hearing Examiner recommended a damages award of $1,000 in
a case where a white patron was excluded from a public place of accommodation or
amusement by the bar's African American owner. The Commission reduced the award
to $750. The Hearing Examiner awarded the full amount of attorney's fees and
costs requested by Meyer.

The relatively small amount of damages was not considered a reason for
reducing the costs and attorney's fees awarded. To reduce or limit the amount of
attorney's fees would send the wrong message to attorneys willing to represent
clients with small monetary but otherwise important claims. Chung, supra.
Because the ordinance contemplates an enforcement process driven by complaints
from individuals, any rule that tends to limit the rights or ability of persons
to pursue rights granted by the ordinance would be contrary to the intent and
spirit of the ordinance. If complainants cannot obtain experienced and capable
attorneys to represent them because of concerns about compensation, the
enforcement scheme considered and adopted by the City Council would likely grind
to a halt. This would be most true for complaints that do not appear to
represent a large damage award that could be a source of payment of costs and
fees. The Respondent's position would be contrary to the ordinance's intention
that attorneys be encouraged to represent complainants before the Commission.
The Respondent's second argument is that the fact that the Commission reduced
the recommended damage award of the Hearing Examiner indicates that the
Complainant did not prevail before the Commission and therefore the Complainant
should not be entitled to costs and attorney's fees for the appeal to the
Commission. The Respondent estimates this amount to be $451.60 comprised of $432
in attorney's fees and $19.60 in costs.

While this position has some initial appeal, it must be rejected upon further
consideration. This contention ignores the fact that except for the reduction in
the damages award the Commission adopted the Hearing Examiner's Recommended
Findings of Fact, Conclusions of Law and Order in its entirety. This includes
the finding of liability. As indicated above, the finding of liability by itself
represents a significant outcome particularly in this case where the Respondent
could suffer additional impacts as a result of other governmental agencies
refusal to deal with a person who has been found to discriminate on the basis of
race. The outcome would parallel that in the Meyer case cited above.

The Hearing Examiner is unwilling to indicate that a respondent should only
appeal a Recommended Findings of Fact, Conclusions of Law and Order where there
is likely to be complete success. Equally the Hearing Examiner is not willing to
adopt a rule that encourages appeals in the hope that any change in the result
would require a loss of attorney's fees either in whole or in part. It seems
that there must be a significant change in the Hearing Examiner's Recommended
Findings of Fact, Conclusions of Law and Order before the Complainant's right to
costs and attorney's fees be considered. Under the circumstances of this
complaint and appeal, the Hearing Examiner is not convinced that the Respondent
obtained such a significant change. This is particularly true since the
Respondent argued on appeal for a finding of no liability or no damages instead
of a reduction in damages.

The third point raised by the Respondent in support of a reduction in costs
and attorney's fees relates to the lack of difficulty or unusual issues
presented by the complaint. The standard rule as recognized in Harris and
Chung derived from Watkins v. LIRC, 117 Wis. 2d 753, 345 N.W.2d
482 (1984) is that an attorney is entitled to his or her full fee based upon the
hours actually expended. In the past, there has been some recognition of a
multiplier for unusual or exceptionally difficult cases: This approach has lost
favor however. Chung, supra. The rule proposed by the Respondent has
never received support.

The final argument offered by the Respondent for a reduction in costs and
fees is shocking to the Hearing Examiner. The Respondent proposes that because
the Respondent testified truthfully and did not commit perjury, he should be
rewarded by a reduction in the costs and fees to be awarded to the prevailing
Complainant. Any person testifying before the Hearing Examiner or any other
municipal body owes a duty of truthfulness based upon his or her oath or
affirmation. Breech of this duty subjects a witness to sanctions prescribed by
law. The reward for truthful testimony is not being subject to penalty for
perjury. To suggest that a party be rewarded in some other manner for his or her
truthful testimony is contrary to the system of citizen responsibility
recognized throughout the United States.

For the reasons set forth above, the Hearing Examiner declines to accept the
arguments of the Respondent. The Respondent shall pay the full amount of costs
and attorney's fees as set forth in the Complainant's motion and supporting
affidavits as amended by Rachel Spector's affidavit of January 18, 1996.